Time For A Quick Lesson In Why The DMCA Safe Harbors Are Important And Make Sense

from the back-to-school-time dept

I've been hearing some buzzing in the last few months among folks in lobbyist circles that the entertainment industry is actually hoping to cut back on the DMCA's safe harbors. There have been murmurings along these lines in the past -- though, it rarely goes far, since the industry is also afraid that opening up the DMCA at all could lead to edits of all the other parts, which they love. Still, with the recent decision tossing out Universal Music's misguided lawsuit against Veoh, a few folks have been posting opinion pieces suggesting that the DMCA safe harbors are either outdated, or misinterpreted in the Veoh decision, and somehow against Congress's intentions. Neither claim stands up to much scrutiny, but it's worth exploring the issues, and digging in a bit so that people understand the importance and value of the DMCA safe harbors.

Two examples of this type of thinking are represented by Paul Resnikoff, of Digital Music News, who suggests that the Veoh ruling is correct under the law, but the real problem is the DMCA's safe harbors are out-dated and should be done away with (or at least adjusted in favor of copyright holders). Then there's entertainment industry lawyer Chris Castle, who suggests that the ruling itself makes no sense and leaves copyright holders "without a remedy." Castle, in his usual manner, also spends some time insulting anyone who might disagree with him as well, which is quite charming.

Law professor Peter Friedman, who knows a thing or two (or much more) about copyright, does a nice job debunking Castle's questionable thesis, but I wanted to take things back a step and discuss both why the DMCA safe harbors are smart, exactly what Congress intended, applied correctly, and why that's all a good thing -- as opposed to the suggestions of Resnikoff and Castle.

First, you have to go back to one of the reasons why the safe harbors are even in the DMCA. The entire DMCA was basically a love letter to the entertainment industry -- giving them yet another massive extension of copyright and the power to control all sorts of things well beyond the Constitutional purpose of copyright ("to promote the progress..."). The most troubling of all was the anti-circumvention clause, which effectively gave copyright holders a veto (or at least a long legal speed bump) on technological device innovation. Equally troubling is the notice-and-takedown provision, which allows for content to be taken down on accusation, rather than actual evidence of infringement.

However, if Congress was going to grant this massive expansion of rights to the entertainment industry, which would allow them to lord over various internet companies, the internet companies wanted to make sure they had one thing: protection against misapplied liability. In an ideal world, such safe harbors wouldn't be needed, because it would be common sense that you don't sue the tool maker for how the tool is used. You don't sue AT&T if someone uses a phone to commit a crime. You don't sue Ford because someone broke the law with a car. Yet, people keep wanting to sue the tools providers on the internet. So, Congress, smartly, added the safe harbors for a single purpose: to make sure liability was properly applied. Liability should be on those who actually infringe the copyrights, not those who provide the tools that were used.

How could that possibly be controversial? Resnikoff's main complaint is that it's "an impossible task" for content holders to police their own works online. To which the only reasonable response is: as opposed to what? If it's an impossible task for copyright holders, it's more than impossible for the service providers. At the very least, the copyright holders know whether or not a use is authorized. The tool provider has no idea. Plenty of smart copyright holders are now releasing content for free on user-generated content sites like YouTube on purpose. Putting the onus on Google to figure out which ones are legit, and which ones are not makes no sense at all. Resnikoff also complains that the safe harbors do not require any sort of proactive effort, such as a filter, but that is a meaningless complaint. Due to so many lawsuits and a made up threat of "contributory infringement," pretty much all serious UGC companies have installed filters anyway, to help protect themselves against an "inducement" claim. So, that's hardly a complaint.

Castle's suggestion that this acceptance of the basic DMCA safe harbors leaves copyright holders "without a remedy" is a statement wholly without support. Jammie Thomas and Joel Tenenbaum -- facing huge awards from infringement trials -- might disagree, for example. All the safe harbors have done is say that the "remedy" should be from the party actually infringing, rather than the tool provider. This was exactly as Congress had intended, and not just in-line with the law, but also with basic common sense and common fairness.

So, as you hear stories being spun about how the safe harbors are somehow problematic, take a step back and understand what they're designed to do. Most of the assumptions being used against the DMCA's safe harbors are misunderstanding their purpose, and assuming that the point of the DMCA itself is to give near total control to copyright holders (never an intention of copyright law at any time in history). Instead, the safe harbors were to make sure that liability was applied properly: on those doing the actual infringing. Those complaining about the safe harbors seem to wish for a world where liability is applied to the easiest target, rather than the accurate target. Thankfully, Congress knew better than to allow that to happen.

What's funny about this is that a company that actually hosts infringing works is somehow less liable that a company that simply stores the location of an infringing work. How does the Grokster case match up with the Veoh one? Will this also be appealed to the Supreme Court and eventually overturned?

Accident?

It's probably an accident that Congress actually did something right. Without a lobbyist to tell them what to do, they might actually work for the people who elected them instead of the corporations who fund their campaigns.

I urge you to read an exchange between
Fred VonLohman and Ben Sheffner at Coprights and Campaigns that fairly presents contrasting points of view concerning Veoh.

While as a general rule safe harbor is an appropriate means to protect what I would term "passive hosts", there will always be situations where the host is an "active" participant...and it is in these admittedly few cases that safe harbors are properly called into question.

Fun to apply off line

Suing a service provider is like Joe Satriani suing Walmart for selling a Coldplay CD that (allegedly) infringed on his works. Come to think of it there's a lot more money in suing Walmart and Apple than Coldplay...

Re:

Re: Accident?

There were lobbyists on both sides. ISPs were well-represented, and almost got the DMCA killed. Rather than allow that to happen, Disney gathered everyone in a room and hammered out the law as it is. It was then presented to Congress. Rinse and repeat. This process occurred several times before the law was finally passed.

The trouble is that you did not have a lobbyist. Content users were entirely unprotected. As James Boyle has put it from time to time, no one was there representing the public domain.

Re: Fun to apply off line

Considering Walmart and Apple, individually, are larger than Satriani (though I do like his music), he would end up LOSING money -- legal fees, etc. -- were he to do so...
So your argument fails.
Funny, though.

Re: Re: Accident?

Ironic, isn't it, that the elected officials were not representing the public?
While the problem is the conduct of elected officials, the solution is not bitching, whining, griping, moaning, groaning about it. The solution is to stop listening to the words these bastards are speaking during their campaigns, and start listening to what they're SAYING. Typically it's not just two different things, but actually two OPPOSING things.

Re:

The trouble is that safe harbors are not nearly broad enough. Copyright infringement should not be a strict liability offense, and civil liability certainly should not be premised on strict liability. Unknowing or merely negligent infringements should never be the basis for civil or criminal liability. And vicarious liability should require not merely knowledge, but intent. If that were the case, then the DMCA "safe harbor" provision would be unnecessary - innocent ISPs would be protected from outrageous liability claims unless they set up their service intended to induce copying. That they knew copying might occur, or even that they knew copying probably would occur, would be largely irrelevant.

Incidentally, the notice/take-down provisions of the safe harbor are plainly ridiculous. For any other alleged offense, in order to get the alleged offender to stop allegedly offending, one must get a court order (namely, an injunction). For instance, if someone opens a candy store across the street from your candy store and posts a big sign in the window saying that studies have shown that the candy you sell is a carcinogen, you must obtain an injunction if you want to compel them to take down the sign. The standard for obtaining one is high, but far from impossible. The standard is set that way because having private citizens arbitrarily declare what other private citizens can and cannot do is a big deal. But the notice standards don't even come close to the standards required for an injunction. Why is that? What is it about putative copyright holders that makes it more important for society to enforce their desire that people stop doing something than it is to enforce the store owner's desire that his competitor stop lying in order to undermine his market?

Makes sense, but...

Those complaining about the safe harbors seem to wish for a world where liability is applied to the easiest target, rather than the accurate target.
The problem with DMCA, as I see it, is it allows for targeting to begin with.

Worse, it's open to significant loopholes which can not protect those who can't/refuse to stand up against abusers. Even YouTube (Google) can't stand up against it, taking down videos which don't infringe at all.

The DMCA is based on "Guilty first, then innocent" which is completely contradictory to the Constitution. We're all pirates until we can prove we're not. That's a problem.

I've read the DMCA, and I see quite a few loopholes, and the example above points out one of them. I'll keep my mouth shut to the others as I definitely don't want any idiotic lawyer getting an idea to run with it.

On the front, the DMCA is good, but it is on borrowed time. After all, if Copyright law was skewed to the point of ineffectiveness, does anyone here really think Safe Harbors stands a chance? Foolish thinking.

Enjoy the internet while you can. I see drastic changes forthcoming which will benefit no one other than those who want more millions in their pockets.

And Mike, while I stand firm with you in regard to new models in use with internet distribution, I can't believe anyone in the entertainment industry is going to change when historic proof shows these morons will never adapt to change.

The history of the VCR and Napster are but two examples of incredible stupidity at failing to adapt, but in both cases, never once has this industry introduced such technology to add more value for consumers.

I applaud this lesson, but it's not going to change the minds of the CEOs hell bent on screwing us over to protect their house payments.

The impossible task is for site operators

A highly active forum system typically gets a few thousand posts per day, and their archive contains over a million. This is monitored by 3-5 admins and maybe a dozen moderators.

Chances that one of those >1 million posts infringes on someone's copyright? Pretty close to 100%.
Chances the site owners are going to catch each and every violation if no one brings it to their attention? Nil.

...and that's a single website.

Imagine a webhost that has a few dozen customers running forums like this, with a staff about the size of the team managing one forum (although the webhost guys are at least paid) and the futility of monitoring goes up exponentially.

Then there's the ISP that provides the bandwidth for dozens of webhosts, which in turn each have dozens of customers running forums like that... or the backbone company that a few dozen lesser ISPs are reselling bandwidth from.

Imagine if every forum has to employ a team to read and approve each and every post. Not only would the speed of discussion slow to a crawl, but if someone has to spend 8-10/hours per day on their forum, they can't afford to do that for free. Neither, really, can any site that takes significant user content, or even simply collects content that they're pretty sure is safe. Results:
-no more free sites that users can contribute to
-no webhosting except at dedicated server prices
-no instant messagers or chatrooms (even WITH paid staff, you can't police those, and even if you could, no one is going to IM people with random corporate employees reading their conversation)
-no search engines
-very few free sites at all, with the few that remain generally doing so only because they also have a profitable site that the free one helps promote

That, of course, is exactly what Hollywood wants - they hate the net as they can no longer control all of entertainment - and I'm not talking about infringing content. Ever seen the numbers on say... how many people of the current generations aren't watching formulaic sitcoms with artificial laugh tracks, because their favorite humor websites are actually funny and Hollywood's recycled crap isn't? A world where all you need is $10 and you have a published work that anyone can find and enjoy in seconds is a world where your work actually has to have some form of value for people to bother looking at it at all. That terrifies people from a world where the barrier to entry was so high that people are guaranteed to watch most of their crap because there was so little of it, and no way for the common citizen to compete.

"While as a general rule safe harbor is an appropriate means to protect what I would term "passive hosts", there will always be situations where the host is an "active" participant...and it is in these admittedly few cases that safe harbors are properly called into question."

Most forum admins are VERY active on their forums - as posters, as moderators, as coders, and very often, as the guys footing the bill for a free site with no ads. There's no way they can read thousands of posts per day however. They'll likely delete infringing content that they stumble upon, and they'll almost certainly check the reported posts list and clear most of that... but if a particular violation isn't either obvious or brought to their attention, it's probably going to be missed. I can pretty much guarantee that in any forum with a large archive, there's an infringing post buried on page 3 bajillion, where none of the active posters even remember the thread, but people who don't even have accounts on the forum system can still Google it and grab the content... and do.

Re:

Ok, I've admitted before that I'm far from being an internet guru, but I do know enough to confidently ask you "WTF??"

That's a bunch of bull for MANY reasons, not the least of which being the not-quite-so-insignificant fact that the safe harbors are US law, which don't necessarily apply to other countries. And even if they do, it's not in the same ways they apply here.

"What?! you mean the United States isn't the only country on the planet? When did we get more?"

Wow..

I would not have had the patience to type all of that. :)

But you are exactly right that site administrators could never catch all infringing content. You are also exactly right that Hollywood doesn't care. The danger here is the ole give an inch take a mile scheme. By getting the safe harbors loosened up, they will abuse the weaker protection with lawsuits effectively crippling what web sites can offer. If Google can't fight it, then nobody can. Lesser sites will have to stop most anything that could lead to infringement for fear of costly lawsuits. Even if you could win the suit, you would be crippled by court/lawyer fees.

Re: The impossible task is for site operators

In regards to the "active participant" issue, I think he was meaning those few sites which are actively participating in copyright infringement (meaning intent to do so), not just actively monitoring their site.

necessity of fingerprinting

The article says that filters are only being installed due to the threat of contributory infringement.

IN fact, however, the DMCA has language about "actual knowledge" and "right and ability to control" that have been interpreted by the courts to mean that filters are pretty much a requisite for enjoying the protection of the safe harbors.

Also, it isn't just the clever marketeers who are using Youtube and Veoh for promotional purposes. UMG *itself* (via their agents) posted promo videos during the period that their suit complains about.

Re: Re:

Did you mean to reply to me? If so, not sure why you did.

I can assure you, without safe harbor laws, ecommerce in the US would grind to a halt. No, the US isn't the only country with the internet, but it is the only one I am in so it really wouldn't matter what happened in the rest of the world. I am sure they feel the same about the US as well.

Why Now?

Its interesting that the content companies were able to live with the safe harbor provision all this time, no matter how much they didn't like it. Why has this gone from a quiet simmer of discontent to a furious boil? IMHO the Veoh ruling is the excuse for attacking safe harbors, not the cause.

The real cause (again IMO) is that the content industries have accepted that lawsuits against individuals is pissing in the wind. Draconian laws passed by lobbied politicians are also looking dicey as the judiciary in many countries won't play along.

So they've started pushing for levies and non-judicial 3 strikes laws. This approach is getting traction in places like the UK (though still a political long-shot). However, they'll never get to square one in the US as long as the safe harbor exists. So they need to be rid of it.